Legislative Oversight: Marihuana Excepted from Controlled Substance Presumption

Steven Sharp, Staff Writer

The Appellate Division, Third Department determined that the evidentiary presumption of knowing possession of a controlled substance pursuant to Penal Law § 220.25(1) is unavailable in marihuana cases.1 Recently, the Court of Appeals denied leave despite previously employing the presumption to uphold a finding of substantial evidence of marihuana possession in a police disciplinary proceeding.2 It is my position that the Third Department erred in its decision.  To remedy the situation, I call on the New York State Legislature to amend Penal Law § 220.25(1).

In People v. Dan, two police detectives, Dennis Guiry and Jeffrey Connery, received a tip regarding suspicious behavior involving a blue SUV.3 The detectives walked by the SUV and detected a strong odor of marihuana emanating from the vehicle.4 Guiry and Connery decided to conduct surveillance of the SUV.5 Eventually, the defendant, Migel Dan, used a remote to unlock the SUV and he drove away in the vehicle.6

The detectives followed defendant briefly, pulled him over and asked him to step out of the vehicle.7 A canine unit arrived and a drug detection dog “alerted” to the presence of a narcotic.8 A subsequent warrantless search revealed the presence of almost 13 pounds of marihuana in the trunk of the vehicle.9 Continue reading “Legislative Oversight: Marihuana Excepted from Controlled Substance Presumption”